UNIT 1-HISTORICAL SCHOOL OF JURISPRUDENCE.pptx

The historical school of jurisprudence, led primarily by Friedrich Carl von Savigny in the early 19th century, emphasizes the importance of historical context in understanding and developing legal systems. This approach argues that law evolves organically from the customs, traditions, and values of a particular society over time, rather than being created through abstract reasoning or legislative fiat. According to this school, legal principles should reflect the historical and cultural experiences of the community. Savigny contended that the law is a living entity that grows with the historical development of the people, and thus, legal reform must be attuned to the historical and cultural context of the society. This perspective contrasts with more rationalist approaches, such as those proposed by the Enlightenment thinkers, who often emphasized universal principles over historical context. The historical school maintains that understanding the historical development of legal institutions is crucial for interpreting and applying the law effectively. Critics argue that it may resist necessary legal reforms by emphasizing tradition over progress. However, its focus on historical continuity and cultural specificity has influenced various legal systems and comparative law studies. Overall, the historical school underscores the significance of history in shaping and understanding legal principles and practices.

1. HISTORICAL SCHOOL OF JURISPRUDENCE UNIT 1

2. HISTORICAL SCHOOL OF JURISPRUDENCE It may be defined as history of fundamental principles of a legal system. Historical school of Jurisprudence argued that the law is the exaggerative form of social custom, economic needs, conventions religious principles, and relations of the people with society. The historical school follows the concept of man-made laws. ‘Law is formulated for the people and by the people’ means that the law should be according to the changing needs of the people. And everyone understand their own need better than anyone else. The historical school doesn’t believe and support the idea of the natural school of law which believe that the origin of law is from superior authority and have some divine relevance.

3. REASONS FOR THE ORIGIN OF HISTORICAL SCHOOL OF JURISPRUDENCE It’s a reaction against the natural law theories:  Natural school of law believes that the law is originated from some divine power. Natural law is also called the Eternal law. It exists since the beginning of the world. It is closely associated with the morality and intention of God. Indian constitution has some relevance of the natural law in its articles. Historical school of Jurisprudence focuses on the formation of law by people not by some divine origin.  It opposes the ideology of the analytical school of jurisprudence:  Analytical school of jurisprudence is also called Austinian School. It is established by John Austin. The subject matter of Analytical school of Jurisprudence is positive law. It focuses on the origin of law, the judges, state and legislators. Historical School laid emphasis on the formation of law by people through customs and habits, not by the judges and superior authority. Rationalism in Europe:  The spread of the spirit of rationalism in European people was the reason for the emergence of this school. This school emphasis on the development of law, take into account the historical facts. The S.C of India, in  Byram Pestonji Gariwala v. Union of India , agreed with this viewpoint, quoting Justice Thommen: “ The Indian legal system is a historical product. It is embedded in our land, nurtured and nourished by our culture, languages, and customs, cultivated and sharpened by our genius and pursuit of social justice, and reinforced by history and culture .”

4. BASIC PRINCIPLES OF HISTORICAL SCHOOL OF JURISPRUDIENCE 4 1. Law as a Legacy of the Past: The law is viewed as a legacy of past customs, traditions, and beliefs prevalent in different communities. 2. Biological Growth of Law: Jurists of the historical schools believe that law has a biological growth and has not evolved in an arbitrary or erratic manner. This school of jurisprudence provides a foundation to trace contemporary law's nature through evolutionary processes, adopting a biological approach. Charles Darwin's 1859 work, On the Origin of Species, led legal thinkers and reformers to view law as a product of evolutionary forces, transformed rather than lost. Darwin's thesis posits that evolution is a struggle for existence where creatures that adapt to changing conditions survive, a principle similarly applicable to human beings under the survival of the fittest. Herbert Spencer furthered this idea by drawing parallels between social and biological organisms, suggesting that individuals adapt to social conditions through heredity, inheriting social instincts, including ideas of morality, right, justice, and obligations. 3. Law's Rootedness in Social Factors: Law is an abstract set of rules imposed on society but is deeply rooted in social and economic factors, reflecting the attitudes of past and present members of society. 4. Non-Universal Validity of Law: Law does not have universal validity or application. Each community develops its own legal habits, shaped by its unique language, manners, and constitution.

5. MONTESQUIEU The 1 st  Jurist to adopt the historical method of understanding the legal institution was Montesquieu. He laid the foundation of the historical school in France. Montesquieu researched into the laws and institutions of all kinds of human society. He considered that law should be based on historical observations, and not merely on reason or belief. According to him, it is irrelevant to discuss whether the law is good or bad because the law depends on social, political and environmental conditions prevailing in society. Montesquieu concluded that the “law is the creation of the climate, local situation, accident or imposture”. He was of the view that law must change according to changing needs of the society. He suggested that the law should answer the needs of the place and should change according to time, place and needs of the people. Montesquieu laid the seeds of the sociological method in jurisprudence. In his “Esprit des Lois” (Spirit of the laws), published in 1748, Montesquieu used the historical method

6. SPIRIT OF LAW Montesquieu was a French lawyer, man of letters, and one of the most influential political philosophers of the Age of Enlightenment. His political theory work, particularly the idea of separation of powers, shaped the modern democratic government. The Spirit of the Laws  is a treatise on political theory that was first published anonymously by Montesquieu in 1748. Montesquieu covered many topics, including the law, social life, and the study of anthropology, and provided more than 3,000 commendations. In this political treatise, Montesquieu pleaded in favor of a constitutional system of government and the separation of powers, the ending of slavery, the preservation of civil liberties and the law, and the idea that political institutions should reflect the social and geographical aspects of each community. Montesquieu defines three main political systems: republican, monarchical, and despotic. As he defines them, republican political systems vary depending on how broadly they extend citizenship rights. Another major theme in  The Spirit of Laws  concerns political liberty and the best means of preserving it. Establishing political liberty requires two things: the separation of the powers of government, and the appropriate framing of civil and criminal laws so as to ensure personal security. Montesquieu argues that the executive, legislative, and judicial functions of government (the so-called tripartite system) should be assigned to different bodies, so that attempts by one branch of government to infringe on political liberty might be restrained by the other branches (checks and balances). He also argues against slavery and for the freedom of thought, speech, and assembly.

7. FRIEDRICH CARL VON SAVIGNY

8. FRIEDRICH CARL VON SAVIGNY (1779- 1861) Source: http s://w ww.b ritannica.com/biography/Friedrich- Karl- von- Savigny/images- videos#/media/1/525746/225037 2

9. INTRODUCTION • Your company name 9 Savigny was a German jurist and legal scholar who was one of the founders of the influential “historical school” of jurisprudence. He studied at the universities of Göttingen and Marburg, where he received his degree in 1800 and at once took up his teaching career. In 1808 Savigny went to the University of Landshut in Bavaria as a professor of Roman law, and in 1810 he was invited to the new University of Berlin, where he soon became one of the most famous and influential members of the faculty. He traced the development of law as an evolutionary process much before Darwin gave this theory of evolution in the field of biological sciences in 1861. Works: Treatise on Possession (1803); The History of Roman Law in the Middle Ages in Six Volumes, 1818- 31. System of Modern Roman Law, 1840- 49. iv. Contracts, 1853.

10. One of the principal doctrines of Savigny was that laws are not of universal validity or application. According to him, each people develop its own legal habits, as it has its own peculiar language, manners and constitution. Savigny insists on the parallel between language and the law which is neither capable of application to other people and countries. According to Savigny the origin of law lies in the popular spirit of the people and this is what termed as Volksgeist . • Your company name 10

11. SAVIGNY • Your company name 11 The principal doctrines of the historical school, as expounded by Savigny and some of his followers, may be summarised as follow: Law is found, not made: A pessimistic view is taken of the power of human action. The growth of law is essentially an unconscious and organic process; legislation is therefore of subordinate importance as compared with custom. Laws are not of universal validity or application. As law develops from a few easily grasped legal relations in primitive communities to the greater complexity of law in modern civilization, popular consciousness can no longer manifest itself directly, but comes to be represented by lawyers, who formulate the technical legal principles.

12. CONCEPT OF VOLKSGEIST AS A SOURCE OF LAW • Your company name 12 The term Volksgeist is a term connoting the productive principles of a spiritual or psychic character operating in different national entities and manifesting itself in various creations like language, folklore, mores, and legal orders. simple term Volksgeist means the general or common consciousness or the popular spirit of the people. Savigny believed that the law of the people and a manifestation of their spirit. The basis of the origin of law is found in volksgeist, which means people’s consciousness or will and consists of traditions, habits, practise and belief of the people. Savigny did not believe that a proper code of law could be created, at least certainly not for the foreseeable future.

13. CONCEPT OF VOLKSGEIST AS A SOURCE OF LAW • Your company name 13 According to Savigny, a law made without taking into consideration the past historical culture and tradition of community is likely to create more confusion rather than solving the problems because ‘law’ is not an ‘artificial lifeless mechanical device’ the origin of law lies in the popular spirit of the people which Savigny termed as Volksgeist. Savigny’s contribution to the development of historical school may briefly be stated under the following heads: Law develops like language Early development of law is spontaneous; thereafter jurists develop it. Savigny was opposed to codification of German Law. Law is a continuous and unbreakable process

14. GEORGE FREDRICK PUCHTA (1798-1856)

15. GEORGE FREDRICK PUCHTA (1798-1856) Puchta was not only a disciple of Savigny but also a great jurist of the Historical School. His work is considered to be more valuable as he made improvements upon the theory of Savigny by making it more logical. He started from the evolution of human beings and traced the development of law since that period. According to him, the idea of law came due to the conflict of interests between the individual will and general will. That automatically forms the state which delimits the sphere of the individual and develops into a tangible and workable system. Puchta agreed with his teacher that the genesis and unfolding of law out of the spirit of the people was an invisible process. "What is visible to us is only the product, law, as it has emerged from the dark laboratory in which it was prepared and by which it became real.” His investigation on the popular origin of law convinced him that customary law was the most genuine expression of the common conviction of the people, and for this reason, far superior to legislation. He considered explicit legislation useful only insofar as it embodied the prevailing national customs and usages. The contribution of Puchta lies in the fact that he gave twofold aspects of human will and origin of the state. It is true that there are some points of distinction between Puchta and Savigny but mostly they are similar. On some points, Puchta improved upon the views of Savigny and made them more logical.

16. HENRY MAINE EVOLUTIONARY APPROACH TO THE STUDY OF LAW

17. HENRY MAINE (1822-1888) 2 Source: http s://w ww.b ritannica.com/biography/Henry- Maine/images-videos#/media/1/358681/172499

18. WHO WAS HENRY MAINE? (1822-1888) Sir Henry Maine was a British comparative jurist and historian. He is famous for the thesis outlined in his book  Ancient Law, that law and society developed ‘from status to contract.’ He was a Cambridge Apostle. Shortly afterward, he accepted a tutorship at Trinity Hall. In 1847, he was appointed a Regius Professor of Civil Law, and he was called to the bar three years later, he held this chair till 1854. Meanwhile, in 1852 he had become one of the readers appointed by the Inns of Court. He was a member of the Council of the Governor General of India (1863-69) and he substantially contributed to codification of the Indian law. He is famous for his notable work, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1861). To trace and define such concepts, he drew upon Roman law, western and eastern European legal systems, Indian law, and Primitive law.

19. Continue……… Maine made a comparative study of legal institution of various communities and laid down a theory of evolution of law. His method was a great improvement upon historical school and yielded fruitful results. Maine made every valuable contribution to legal philosophy by way of historic comparative method. He was an erudite scholar of law. Sir Henry Maine through his comparative study came to a conclusion that the development of law and other social institution had more or less an identical path in almost all the ancient societies belonging to Hindu, Roman, Anglo-Saxon, Hebrew and Germanic communities. Most of these communities are founded on Patriarchal pattern wherein the eldest male parent called the Pater familias dominated the entire family. There were some communities which followed matriarchal pattern in which the eldest female of the family was the central authority to manage the family affairs.

20. STATUS TO CONTRACT According to Maine, Pater familias constituted the lowest unit of primitive communities. A few families together formed the family group. An aggregation of families constituted Gens (an extended family unit) which in turn led to the formation of tribes and collection of tribe formed the community . The individual member of the family had no individual existence other than his status . Maine arrived at his often quoted conclusion that “the movement of the progressive societies has hitherto been a movement from Status to Contract.” Status is a fixed condition in which an individual finds himself without reference to his will and from which he cannot divest himself by his own efforts. It is indicative of a social order in which the group, not the individual, is the primary unit of social life; every individual is enmeshed in a network of a family and group ties. With the progress of civilization this condition gradually gives away to a social system based on contract. This system is characterized by individual freedom, in that “the rights, duties and liabilities flow from voluntary action and are consequences of exertion of the human will.” A progressive civilization, in the view of Maine, is manifested by the emergence of the independent, free, and self-determining individual as the primary unit of social life.

21. From status Maine argued that early societies were characterized by a legal system based primarily on status. Status refers to the social positions or roles that individuals occupy within a society, often determined by birth or inherited characteristics. In such societies, rights, obligations, and duties were largely determined by one's social status or position in the community. Laws were often communal and customary, and individuals had limited freedom to negotiate or change their legal rights and duties. To contract Maine observed that over time, especially in more advanced societies, there was a shift towards a legal system based on contract. Contractual relationships emerged where individuals could enter into agreements voluntarily, based on mutual consent and negotiation. Under contract-based legal systems, individuals have more freedom to determine their rights and obligations through agreements, which are enforceable by law.

22. STAGES OF DEVELOPMENT OF LAW AS PROPOSED BY HENRY MAINE Henry Maine's analysis of the development of law, particularly as outlined in his book "Ancient Law" (1861), revolves around the concept of legal evolution from more primitive to more advanced stages. Next few slides discuss the stages of development of law according to Maine These stages of legal development, as conceptualized by Henry Maine, illustrate the evolution of law from informal, status-based arrangements in early societies to more structured, rule-based systems that prioritize individual rights, contractual agreements, and legal certainty in modern times. Maine's analysis provides a historical framework for understanding the transformation of legal systems and their role in shaping social, economic, and political structures over time

23. STAGES OF DEVELOPMENT OF LAW First Stage: Divine Command (Divine Law) : Characteristics : In the earliest stage, rulers are believed to derive their authority and laws from divine inspiration or divine mandate. The king or ruler is seen as the embodiment of divine will, and their judgments are considered to reflect divine justice. Legal Basis : Laws are not explicitly codified but are believed to be derived from divine commands or revelations. The king's role is more that of an executor of divine justice rather than a lawmaker in a modern sense. Example : Ancient civilizations such as Mesopotamia, Egypt, and early Biblical societies where rulers were regarded as semi-divine or directly appointed by gods, and their decrees were seen as divine mandate.

24. STAGES OF DEVELOPMENT OF LAW Second Stage: Customary Law (Custom) : Transition : Over time, the commands of the ruler evolve into customary practices that prevail among the ruler's subjects or the majority class within the society. Characteristics : Customary law emerges as the dominant source of legal norms and regulations. It is based on long-standing traditions, practices, and habits that are widely accepted and enforced within the community. Legal Authority : Custom takes precedence over the authority of the ruler, indicating a shift towards collective acceptance and adherence to customary norms rather than arbitrary commands. Example : Feudal societies in medieval Europe where customary laws governed social relations, property rights, and obligations between lords and vassals based on long-established traditions and practices.

25. STAGES OF DEVELOPMENT OF LAW Third Stage: Class Control (Classical Law) : Shift in Administration : As the original law-making power of the ruler weakens, the knowledge and administration of customs shift to a minority class within society. Characteristics : A minority class, often comprising legal professionals, scholars, or elites, gains control over the interpretation, application, and development of legal principles and norms. Legal Expertise : This stage marks the emergence of legal expertise and specialization among a class of jurists or lawmakers who formalize and systematize legal rules based on precedents and principles. Example : Ancient Rome where legal experts (jurists) played a crucial role in interpreting and codifying Roman law, contributing to the development of a sophisticated legal system that influenced Western legal traditions

26. STAGES OF DEVELOPMENT OF LAW Fourth Stage: Codification (Modern Law) : Codification and Promulgation : In the final stage identified by Maine, laws are systematically codified, written down, and officially promulgated by recognized authorities or legislative bodies. Characteristics : The legal system becomes formalized with clear, written laws that are accessible and enforceable through judicial and administrative institutions. Legal Certainty : Codification enhances legal certainty, predictability, and uniformity in the application of laws, ensuring equal treatment and justice for all citizens. Example : Modern legal systems influenced by Roman law principles, common law traditions, or statutory regulations where laws are codified in codes, statutes, constitutions, and regulations that govern various aspects of public and private life

27. TYPES OF SOCITIES According to Henry Maine, societies are of two types-Progressive Societies and Static Societies. Progressive Societies:- According to Henry Maine, those societies which go beyond the fourth stage as developing their laws, by new methods are called progressive societies. Progressive societies develop their laws by the three methods namely; Legal Fiction, Equity, and Legislation. Static Societies:- According to Maine, when the primitive law has been embodied in a code, there is an end to its spontaneous development and such communities or societies which do not modify or go beyond the fourth stage are called static societies.

28. THREE METHODS BY WHICH PROGRESSIVE SOCITIES DEVELOP THEIR LAWS 1. Legal Fiction : Definition : Legal fiction involves the creation or acceptance of a hypothetical situation or assumption by courts or lawmakers for the purpose of achieving a legal outcome that serves justice or societal needs. Purpose : Legal fictions are often employed to overcome rigidities or gaps in existing laws, to adapt legal principles to changing social circumstances, or to achieve fairness and practical justice in specific cases. Examples : Adverse Possession : In property law, adverse possession allows someone who openly and continuously occupies land for a specified period to claim legal ownership. This legal fiction treats the possessor as the rightful owner, despite not having original title. Corporate Personhood : In corporate law, legal fiction treats corporations as legal persons with certain rights and responsibilities similar to individuals, enabling them to enter contracts, sue, and be sued. Role in Legal Development : Maine viewed legal fiction as a creative mechanism that allows legal systems to adapt and evolve without formal legislative changes. It reflects the flexibility of law to respond to societal needs and changing circumstances

29. THREE METHODS BY WHICH PROGRESSIVE SOCITIES DEVELOP THEIR LAWS 2. Equity : Definition : Equity refers to a system of legal principles and remedies that developed historically alongside common law to provide fairness, flexibility, and justice where strict application of legal rules might lead to inequitable outcomes. Purpose : Equity seeks to mitigate the harshness of common law rules by providing discretionary remedies, injunctions, and specific performance orders that focus on fairness and individual circumstances. Examples : Specific Performance : In contract law, equity may order specific performance (compelling a party to perform their contractual obligations) instead of awarding monetary damages, especially in cases involving unique goods or services. Injunctions : Equity courts may issue injunctions to prevent harm or enforce compliance with legal duties when monetary damages are inadequate. Example: A trustee is required to manage trust property for the benefit of beneficiaries according to the terms of the trust deed, and courts can intervene to ensure trustees act in the best interests of beneficiaries. Example: A property owner fails to object to encroachments by a neighbor for several years, and the neighbor invests in improvements based on this silence. The owner may be barred from asserting their property rights later. A landowner informs a tenant they can continue renting a property indefinitely. Based on this assurance, the tenant makes substantial improvements to the property. Court may prevent the landowner from evicting the tenant abruptly. Role in Legal Development : Maine emphasized equity as a crucial aspect of legal evolution that complements and enriches the rigid application of common law rules. It allows courts to achieve justice in situations not covered by existing statutes or where application of strict legal rules would lead to unjust outcomes

30. THREE METHODS BY WHICH PROGRESSIVE SOCITIES DEVELOP THEIR LAWS 3. Legislation : Definition : Legislation refers to the formal process by which laws are enacted or codified by legislative bodies, such as parliaments, congresses, or assemblies, based on societal needs, public policy, and constitutional principles. Purpose : Legislation provides a systematic and authoritative means of creating, amending, or repealing laws to regulate conduct, protect rights, and address emerging social, economic, and political issues. Examples : Statutory Law : Laws passed by legislative bodies that govern various aspects of public and private life, including criminal law, civil law, administrative law, and constitutional law. Amendments : Legislative bodies can amend existing laws to reflect changing societal norms, technological advancements, or judicial interpretations. Role in Legal Development : Maine recognized legislation as a critical method through which societies modernize their legal systems and respond to evolving needs. It enhances legal certainty, promotes uniformity, and ensures democratic accountability in lawmaking processes